MAMOON KAZI, J.---Civil Appeals No.188 of 1994, No.189/1994 and No.926 of 1994 have arisen, by leave of this Court, from the judgment of a Division Bench of the Peshawar High Court dated 21-11- 1993. The first to appeals have been filed by Mian Shamsul Haq against Mst Saira, the appellant in Civil Appeal No.926 of 1994 whereas the third appeal has been filed by Mst. Saira against Mian Shamsul Haq and others. We propose to dispose of the three appeals by this common judgment as common questions are involved therein.
2. The facts giving rise to the said appeals are that, Mst. Saira instituted a civil suit against Mian Shamsul Haq and other respondents in the Court of Civil Judge, Mardan seeking declaration that she was entitled to her 7/104th share in the estate of her deceased father, Mian Abidul Haq, and out of the money deposited by him in the bank, she was entitled to recover of her share from the respondents who had withdrawn the same from the bank in accordance with the nomination sent by the said deceased to the bank.
3. The suit was contested by the said respondents and the learned trial Judge vide his judgment and decree dated 24-6-1992 decreed the suit in favour of Mst. Saira in the sum of Rs.1,07,625 alongwith 15% profit as prayed for in the plaint.
4. From the said judgment of the Civil Judge Mst. Saira filed appeal in the Peshawar High Court and the respondents also filed cross-objections in the said Court. However, during pendency of the appeal and the cross-objections Mst. Saira instituted execution proceedings before the Trial Court for recovery of the entire decretal amount only against Mian Shamsul Haq. The said respondent filed objections before the executing Court upon the ground that recovery was to be made from all the judgment-debtors. The objections were however, dismissed by the executing Court on 2-3- 1993. Feeling aggrieved by the said order Mian Shamsul Haq filed First Appeal No. 14 of 1993 in the Peshawar High Court.
5. Both the said!'' appeals together with the cross-objections came up for hearing before a Devision Bench of the Peshawar High Court., It has been contended by Mst. Saira that during the hearing of the said appeals a statement was made on her behalf before the Court indicating that in case the judgment and decree passed by the trial Court and the order passed by the executing Court were maintained, she would not press her appeal before the High Court. It also appears that the counsel for appellant, Mian Shamsul Haq had made a statement before the Court that he would not press the cross-objections filed by the said appellant in case the executing Court was directed to execute the decree only against those heirs of late Mian Abidul Haq, who had taken more than their due share as had been determined by the trial Court.
6. The appeals were consequently disposed of by the learned Division Bench holding that since the suit filed by Mst. Saira was for the recovery of her share from the other shareholders, she was entitled to recover the same from all the shareholders jointly and severally and consequently both the appeal filed by Mst. Saira and the cross-objections filed by Mian Shamsul Haq were dismissed in view of the respective statements.
7. Leave was granted by this Court to determine whether the learned Judges of the Peshawar High Court in view of the said circumstances were justified in holding that recovery be made from all the shareholders jointly and severally. Leave was also granted to Mst. Saira in Civil Appeal No.926 of 1994 although her objection was found to be barred by 213 days. Nevertheless the question of limitation was left open to be decided at the the of final hearing.
8. It may be pointed out at the very outset that we find it hard to sustain the judgment of the Peshawar High Court. The appeals and the cross-objections have been disposed of upon the said statements made on behalf of the said appellants and the respondents but, as is clearly evident from the said judgment, the parties before the Court had not agreed to the same terms. A case, no doubt, may be disposed of with the consent of the parties therein when they agree to the same terms. In the present case, the contention of Mst. Saira, who has argued the case herself, has been that, she gave her consent for dismissal of the appeal only in case the judgment and the decree passed by the trial Court as well as the order passed by the executing Court were maintained.
However, according to her, the words 'executing Court' did not find mention in the judgment of the Peshawar High Court. According to the said appellant, she consented for such order only to avoid further litigation and with the hope that she would get the decretal amount in a lump sum although, lesser from the amount she was otherwise entitled to claim. Hence, according to her, there was no sense in accepting the decree if the same had to be executed jointly against all the respondents. Similar appears to be the grievance raised on behalf of Mian Shamsul Haq because, according to the learned counsel appearing on his behalf, he had agreed not to press his cross- objections in case the executing Court had been directed to execute the decree only against those heirs of Mian Abidul Haa who had taken more than their due share as had been determined by the trial Court. However, no such direction appears to be reflected in the order of the learned Judge of the High Court.
9. The circumstances enumerated above leave no doubt that the terms purportedly agreed to by the parties are not reflected in the final order of the Court. First of all, as pointed out earlier, there can hardly be any compromise between the parties unless they agree to the same terms. But in the present case, statements respectively made on behalf of the parties, which at the most were conditional offers, could neither be regarded as admissions nor they could constitute a compromise. Nothing can be spelt out from the impugned judgment to suggest that the parties had agreed to the same terms. Therefore, the judgment is neither based upon any compromise or consent purportedly given by the parties nor the same has been passed on merits. If the parties had not given their consent to the impugned judgment, the case under such circumstances should have been disposed of by the High Court on merits, which had not been done in the present case.
10. In the result, the judgment dated 21-11-1993, is set aside and the case is remanded to the High Court for a fresh disposal. We are conscious of the fact that disposal of the case afresh would cause further delay but under the circumstances it is only the High Court which can determine what were the terms actually suggested by the appellants and the respondents for a consent order. The learned Judges of the High Court may, therefore, ensure that the case is decided by them as expeditiously as possible so that no further inconvenience may be caused to the parties.
The delay in filing the leave petition by Saira is condoned.